Examination of Witnesses (Questions 900
- 919)
MONDAY 8 DECEMBER 2003
MR DAVID
MILIBAND MP AND
MR STEPHEN
TWIGG MP
Q900 Paul Holmes: Why give the specialist
schools the power to select 10% on aptitude or ability? Regardless
of how many actually do, you gave them the power to do that. Why
give them that power if you think the local education authorities
and the local admissions authorities should be the ones who have
the choice?
Mr Miliband: I think that the
validity or usefulness of the specialist flexibility is that in
subjects like music and sport we think that the recognition of
aptitude in the small minority of admissions decisions is a valuable
flexibility for schools in developing centres of excellence in
a particular area.
Q901 Paul Holmes: Just music and
sport? Not maths or engineering?
Mr Miliband: You will know that
there are five specialisms where it is allowed. It is not allowed
in the humanities but it is in music and sport and the areas where
we think an aptitude test is unlikely to blend into an ability
test.
Q902 Jonathan Shaw: The Chairman
mentioned adhering to or noting the Code. I just want to ask you
a bit about children in care. The Adjudicator, Dr Hunter, said
that he was very clear that children in public care should be
number one in terms of surplus places for schools that are over-subscribed.
We have interviewed people in Slough, we have also taken into
account what witnesses have said to us here and what is clear
is that having regard does not necessarily mean that children
in public care will be number one priority. As you point out,
Minister, it can be challenged. Is that really a satisfactory
state of affairs when 75% of children who leave school do so without
educational qualifications? They have to wait. That is always
the thing about children in care, the waiting. Children in care
have to wait for schools to be challenged; it is not making them
the priority.
Mr Twigg: I think that what it
absolutely vital is that we have made a really significant change
here by saying, through the Code, that looked after children should
be right there at the top of our priorities. I do agree that we
have a duty as ministers to make very clear what we mean by that
and that that is an expectation that we have of schools and communities
across the country. I understand the percentage of looked after
children who achieve five A* to C at GCSE is something like 8%
and that is scandalous. I think that by saying what we have said
in the Code we have sent out a very powerful message. Clearly
we have to look to see how that is developing as the Code is now
in practice to see that schools are keeping to that.
Q903 Jonathan Shaw: I am encouraged
to hear you say that. So that is something you will monitor to
see that that is actually happening. How will you know whether
it is happening if places are not challenged?
Mr Twigg: I think we have an opportunity
to take this forward, which is, of course, the legislation announced
in the Queen's Speech, the Children's Bill. The thinking in terms
of the Children's Bill is to place a duty on local authorities
in respect of the educational achievements of looked after children.
I think that does provide the opportunity to carry out precisely
the monitoring that you are rightly suggesting we should carry
out.
Q904 Jonathan Shaw: In terms of that
monitoring that will be given to OFSTED, David Bell said that
he did not inspect admissions arrangements so how will they know?
Q905 Mr Twigg: I think, as part of
the inspection, his inspectors will be looking at a range of factors
in terms of the implementation of policies. I think that while
OFSTED clearly has a role to play, my point was perhaps a slightly
different one which is that the present thinking in terms of the
children's legislation proposed is to give a specific role to
the local authority. It may well be that the local authority can
work in conjunction with OFSTED, but I think it is a specific
responsibility there for the local authority which, of course,
has that wider responsibility for children in its care.
Q906 Jonathan Shaw: The local authority
have children in care and they are not the admissions authorities
for a particular high performing school which is clearly saying
that they do not want children in care in their school. The evidence
is there. Who is going to take these schools to the Adjudicator?
Mr Miliband: The local authority.
It is the local authority that has that responsibility for children
in its care.
Q907 Jonathan Shaw: I suppose it
all does require challenge rather than the admissions authorities
or the schools actually making that decision themselves.
It is not very pro-active.
Mr Twigg: We are moving in the
right direction. We have started with the Code. The next stage
with the changes being made to the provision of children's services
at the local level is to then have the right lever for ensuring
that the Code is effective at the local level. I think there is
good sense in saying that placing that duty upon local government
makes sense to enable the local authority to play that role effectively
on behalf of the children in its care.
Q908 Chairman: Minister, in your
opening remarks you said "adhered to". That means "stuck
to" in my translation. We took evidence, for example, from
a head who basically said that they do not interpret it in that
way. When we asked what happened, having been taken to the Adjudicator
on this, he said that they did not ask about that. They were doing
a number of things which we considered to be in breach of the
Code, but no-one is doing anything about it. It is a sort of laissez
faire. Who is out there to make sure that all these admissions
authorities take note of the Code? It is not strong enough, is
it?
Mr Miliband: In relation to children
in care I think Stephen has given you a very clear answer. The
local authority is in pole position to do that. Is that the question
you are asking?
Q909 Chairman: When we go out as
a Committee into the local authority and a head of a school says
that it does not apply and I am asking you what is going wrong?
Mr Miliband: I either suggest
that the local authority is perfectly happy with the distribution
or it is not providing the degree of challenge that is necessary.
The Code is there to provide a benchmark to ensure that there
is proper opportunity. The obvious question is to ask the local
education authority if they are satisfied with the arrangements
for children in care or do they not realise what power they have.
Q910 Chairman: The fact of the matter
is that the evidence given to this Committee is that the Code
is not strong enough. It is not adhered to; it is not stuck to;
it is advisory. Up and down the country admissions authorities,
whether individual schools or not—are disregarding it.
Mr Miliband: I would say that
whilst it is tempting for ministers to believe that for every
problem that exists the answer is to take power to themselves,
actually a properly functional system depends on a balance of
responsibility between central and local government. If local
government has power in this area and is not using it, the answer
is not to nationalise the power. The answer is to ask why they
are not using it.
Q911 Chairman: I know you do not
like sending out circulars, but have you ever sent a circular
out to local education authorities suggesting that they could
use this power?
Mr Miliband: I am very happy to
provide the Committee with the voluminous correspondence that
has been sent over the last three or four years on repeated occasions
to local authorities. I have a feeling this is an area in which
we are often accused of being overly bureaucratic and overly zealous
in our dissemination of information about the powers that exist.
Mr Twigg: Specifically in respect
of looked after children, part of my answer was to acknowledge
that there is not sufficient power at the moment at the local
authority level and therefore it is a matter of local autonomy
and the proposals as they stand for the children's legislation
are to place a duty on the local authorities to do that which
does not exist at the moment.
Q912 Helen Jones: That seems an awfully
long-winded way of going about it. If we are all agreed—as
I think we are—that the education of looked after children
has been scandalously neglected for many years, and we all accept
that schools ought to be doing more about it, why do we have to
go down this long winded route of giving the power to local authorities
then expecting local authorities to refer matters to the Adjudicator
if schools are not complying with the Code? Would it not be simpler
just to make those provisions in the Code mandatory?
Mr Twigg: I would hope that the
reference to the Adjudicator would, in a sense, be a last resort
and the local authority would have relationships at the local
level that might well enable the position we all want to bring
about without it having to go to the Adjudicator. I can understand
a sense of frustration that we are not simply saying that we will
legislate and it will all be done from the centre, but I concur
really with David's answer that I think it makes more sense to
say that these are matters best led at the local level. What I
suppose I was acknowledging is that at the moment the local level
does not necessarily have the duty that I would like to see it
have and this legislation with the Children's Bill provides the
opportunity to do that.
Q913 Helen Jones: It is possible,
is it not, that a local authority could decide that it was discharging
its duty to looked after children even if a particular school
was not giving them priority in the over-subscription criteria?
I think what we are trying to tease out of you is why the educational
opportunities of looked after children should vary depending on
which local authority they happen to find themselves in and how
pro-active that local authority decides to be.
Mr Twigg: If there were those
circumstances I suppose I would like to look at them as well as
anyone else to see what the reasoning was. I think that this is
the sort of decision and approach that is best decided at the
local level.
Q914 Helen Jones: Why?
Mr Twigg: Because I do not think
that it is my job or David's job or Charles Clarke's job to make
of all of these very detailed decisions from the centre. I think
we are legitimately criticised in the past for having had an over-centralised
approach to certain aspects of policy, and what we are seeking
to say through the arrangements in the Code of Practice and through
other legislation is that actually the local level is an important
level for all sorts of different decisions, of which this is one.
Q915 Helen Jones: This is not about
that sort of detail, is it? It is about a very clear national
policy regarding looked after children. What we are trying to
tease out of you is why the implementation of that policy should
vary from authority to authority?
Mr Twigg: All authorities have
the Code; the Code is not something that applies to some and not
to others. It is not mandatory in any authority. The implementation
of that is at the local level, but that implementation has to
be in the light of the Code; it is not regardless of the Code.
It may be that there would be particular circumstances that would
dictate a particular approach in an area. What I think is important
is that we fill the gap that undoubtedly exists at the moment
under which there is not an expectation that the local authority
will play that role on behalf of its looked after children. I
would hope that local authorities would be doing that anyway,
but if the evidence is that that is not happening everywhere I
think we close that loophole with what we are saying through the
children's legislation.
Mr Miliband: It is also correct
to say that where the Secretary of State believes that an authority
is acting in an unreasonable way he has the power to direct them
to act in a different way.
Q916 Helen Jones: That is true, but
we could have a long discussion about the concept of unreasonableness
in law which would take us down a lot of blind alleys perhaps.
What we are asking you is why it is not simpler simply to make
that provision mandatory. At the moment I am not convinced by
your answer. What was the reasoning that the Department went through—particularly
in regard to looked after children—in not making these provisions
mandatory?
Mr Miliband: I think that the
decision to go down the Code route—if I can put it like
that—was made with respect and with a view of the overall
needs of the admissions system and it would be less bureaucratic
and more tuned to local needs, better able to respond to a change
in circumstances. If we went down the route of having a Code and
then tried to add a whole range of requirements that would fail
to take into account individual needs. I hear what you say about
the concept of reasonableness, but I think that it is understood
and can lead to rather rapid conclusions and I think most of us,
if we see something unreasonable, we would be able to get pretty
quick agreement on it. I do not think it is as toothless as you
suggest.
Q917 Chairman: I think you are getting
the sense from the Committee that we are not too happy about some
of your replies. If you look at the formal evidence we took last
week in Slough and also if you visited them, here we saw a pretty
reasonable authority with good leadership which feels rather frustrated
with the present system because they can hardly do much with the
selective system you have left them with even if they wanted to
change it. However, the message you are giving out here did not
seem to be clear to them. Their schools are saying that schools
are not admitting this particular vulnerable group of children.
Mr Miliband: It is worth pointing
out that that is a fairly new requirement; it came out in January
so we are talking about something which is less than a year old.
If you are not convinced, let us go away and marshal our arguments
in a way which is as convincing as possible.
Q918 Valerie Davey: Since local authorities
are now back in favour should communities not feel more confident
that the admissions policies reflect the fact that schools are
based in their communities?
Mr Miliband: Obviously we want
to have strong links between schools and communities. Of the four
priorities that the schools directorate sets up, one of them is
the link between schools and the wider community. However, we
face a real dilemma here which is that every child going to their
local school might produce the most segregated educational distribution
of pupils that one can imagine. It rather depends on what you
mean by the question. If your question is: should a school have
strong roots and links with their local community then obviously
the answer is yes. If you mean by that: do we believe that every
child should go to the school closest to them, the answer to that
is no.
Q919 Valerie Davey: There is no debate
in any situation until you get over-subscription and this is where
the dilemma falls such that the individual schools who are their
own admissions authorities apparently take priority over the local
authority which was trying to hold the balance. I think this is
part of our difficulty in trying to understand where the balance
really lies. Does it lie in a case of over-subscription with a
school with all the criteria that are found in the Code—which
they may or may not adhere to, or may or may not have cognisance
of—or does it lie, ultimately with the local authority because
they have the good of the wider community at heart?
Mr Miliband: The balance of what?
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